In re Ford Motor Co. E-350 Can Products Liability Litigation (No. II)

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2012 U.S. Dist. LEXIS 13887, *Page 24Plaintiffs have not shown common proof of omissionor reliance, and, therefore, common issues of factand law do not predominate over individual issues. Consequently,the Court will deny certification of Plaintiffs'proposed Texas class.C. PennsylvaniaThe only remaining Pennsylvania claims are the impliedwarranty claims of Bethel, Hickman Temple, andMt. Airy, as well Bethel's unjust enrichment claim on its2001 van. See July 9 Opinion, 2010 U.S. Dist. LEXIS68241, 2010 WL 2813788, at *44; February 16 Opinion,2011 U.S. Dist. LEXIS 16504, 2011 WL 601279, at *6.Ford objects to Plaintiffs' proposed Pennsylvania classeson the grounds that Plaintiffs cannot prove their impliedwarranty and unjust enrichment claims with commonproof. The Court agrees on both counts.1. Implied WarrantyFord advances essentially the same objections to theproposed Pennsylvania implied warranty class that itpresented in opposition to the proposed New York impliedwarranty class, and Plaintiffs offer essentially thesame responses. Accordingly, one would presuppose[*100] that the same class certification analysis the Courtconducted with regard to the New York implied warrantyclass would be applicable to the other jurisdictions' impliedwarranty classes. However, as Chief Judge Brownrecognized in the omnibus July 9 Opinion, 2010 U.S.Dist. LEXIS 68241, 2010 WL 2813788, at *41-42, Pennsylvaniacourts have not yet adopted actual injury requirementsakin to Frank. The question remains whetherPlaintiffs' implied warranty classes survive in jurisdictionswith less stringent injury requirements than NewYork. This Court concludes that the Pennsylvania impliedwarranty class still suffers from individual issues ofcausation that render class treatment impracticable.Like other states, Pennsylvania imposes an impliedwarranty of merchantability on all contracts for the saleof goods if the seller is a merchant. 13 Pa. Cons. Stat. §2314(a). The UCC as codified in Pennsylvania statesthat, in order to be merchantable, the goods must "passwithout objection in the trade under the contract description"and be "fit for the ordinary purposes for which suchgoods are used." Id. § 2314(b). The Pennsylvania SupremeCourt has held that "[t]he concept of merchantabilitydoes not require that [*101] the goods be the bestquality or the best obtainable but it does require that theyhave an inherent soundness which makes them suitablefor the purpose for which they are designed, that they befree from significant defects, that they perform in theway that goods of that kind should perform, and that theybe of reasonable quality within expected variations andfor the ordinary purpose for which they are used." Gall v.Allegheny Cty., Health Dep't, 521 Pa. 68, 555 A.2d 786,789-90 (Pa. 1989) (internal citations omitted). Like otherjurisdictions, Pennsylvania's UCC requires a showing ofcausation that can be overcome by knowledge of thedefect at the time of purchase. "When the buyer beforeentering into the contract has examined the goods or thesample or model as fully as he desired or has refused toexamine the goods there is no implied warranty withregard to defects which an examination ought in the circumstancesto have revealed to him." 13 Pa. Cons. Stat.§ 2316(c)(2); see also id. Cmt. 8 ("The particular buyer'sskill and the normal method of examining goods in thecircumstances determine what defects are excluded bythe examination. A failure to notice defects which areobvious cannot [*102] excuse the buyer."); id. § 2314Cmt. 13 ("Action by the buyer following an examinationof the goods which ought to have indicated the defectcomplained of can be shown as matter bearing onwhether the breach itself was the cause of the injury.");Nufeeds, Inc. v. Westmin Corp., No. 04-1071, 2006 U.S.Dist. LEXIS 21030, 2006 WL 1000021, at *18 (M.D. Pa.Apr. 17, 2006). Consequently, this Court's causation reasoningwith regard to the New York implied warrantyclass applies equally to the Pennsylvania implied warrantyclass. Resolution of these claims will require individualizedinquiries into each consumer experience, so asto identify and exclude those consumers who purchasedE-350 vans with actual knowledge of its handling problems,whether from personal use or from a variety ofreports that were published between 2000 and 2004.2. Unjust EnrichmentTo assert a claim of unjust enrichment under Pennsylvanialaw, a plaintiff must show that: "(1) benefitsconferred on defendant by plaintiff; (2) appreciation ofsuch benefits by defendant; and (3) acceptance and retentionof such benefits under such circumstances that itwould be inequitable for defendant to retain the benefitwithout payment of value." Williams Twp. Bd. of Supervisorsv. Williams Twp. Emergency Co., 986 A.2d 914,923-24 (Pa. Commw. Ct. 2009) [*103] (citations omitted).Pennsylvania law views unjust enrichment as anequitable remedy based on the law of restitution. See,e.g., Mitchell v. Moore, 1999 PA Super 77, 729 A.2d1200, 1203-04 (Pa. Super. Ct. 1999); Powers v. LycomingEngines, 328 F. App'x 121, 125 (3d Cir. 2009) (collectingPennsylvania cases).Ford argues that Plaintiffs do not have commonproof of a benefit conferred upon Ford, that the benefitexceeded the value of the vehicle, or that retention of thebenefit by Ford would be unjust. Plaintiffs respond bylimiting their proposed unjust enrichment class "to consumerpurchases of new vehicles during the time periodprior to April 2004," so as to limit the class to consumers
2012 U.S. Dist. LEXIS 13887, *Page 25who conveyed a benefit upon Ford, and argue that theyhave common proof of Ford's misconduct, in the form ofevidence that Ford disregarded and failed to disclose toconsumers an engineering recommendation that Fordshould redesign their 15-passenger vans to improve vanstability and handling. (Pls.' Reply Br. at 37).While it appears that the modifications to Plaintiffs'proposed unjust enrichment classes address the first objectionraised by Ford (common benefit), the Courtagrees with Ford that Plaintiffs cannot [*104] satisfy theremaining elements of their unjust enrichment claimswith common proof.As this Court has explained with regard to otherproposed classes, the summary judgment record in thiscase established that different named Plaintiffs had differentconsumer experiences vis-a-vis their E-350 van.Some were not exposed to any representations about thevan's capacity or relative safety, some experienced nodiscernable handling problems with their vans, somecontinue to fill their van to capacity, and some incurredno injury whatsoever. At the same time, the E-350 owners'manuals issued by Ford progressively alerted consumersto the van's unique handling characteristics andthe need to drive with caution. This Court finds illustrativeChief Judge Brown's rulings with regard to the unjustenrichment claims of Illinois Plaintiff PentecostalTemple, New York Plaintiff Barrett, and Florida PlaintiffBlandon.Addressing the former, Chief Judge Brown grantedsummary judgment against Pentecostal Temple's unjustenrichment claim, reasoning as follows:It is undisputed, based on Pastor Edwards'sdeposition testimony, that no oneat Pentecostal Temple received any representationsfrom Ford, saw any [*105]Ford marketing materials, or even observedthat the E-350 purported to be a15-passenger van. Pentecostal Templesold its first E-350 van for reasons unrelatedto the handling issues giving rise tothis litigation, and it purchased the 1998van based on the desire for "somethingthat would take more than four or fivemembers at a time" and that would haveease of access for seniors and young people.(Edwards Dep. at 56:16-17; 57:1-19).While other Plaintiffs in this action mighthave acquired their E-350 vans based onFord's representations or labeling of thevehicles as 15-passenger vans, the undisputedrecord shows that Pentecostal Templedid not.July 9 Opinion, 2010 U.S. Dist. LEXIS 68241, 2010 WL2813788, at *25. Chief Judge Brown explained that PentecostalTemple's "unjust enrichment claim fails for thesame substantive flaw that dooms its [consumer fraudact] claim: it cannot show deception or other wrongfulconduct directed at Pentecostal Temple." 2010 U.S. Dist.LEXIS 68241, [WL] at *24. Similarly, Chief JudgeBrown granted summary judgment against New YorkPlaintiff Barrett's unjust enrichment claim, because theundisputed record revealed that Barrett: (i) knew of thehandling defects prior to purchase and told his salesmanof the [*106] same (simultaneously negotiating a lowerprice that Barrett deemed fair); (ii) did not experiencehandling problems and continued to fill his van to capacity;(iii) still would have bought the van if he had all theknowledge that he had at the time of his deposition; and(iv) had no intention of selling the van. 2010 U.S. Dist.LEXIS 68241, [WL] at *71-72 (citing the benefit-of-thebargainprinciples of Canon Cameras and the actual injuryrequirement of Frank). As this Court observed, supra,it cannot be denied that such a class member hasbeen deprived of the benefit of his or her bargain. ChiefJudge Brown further granted summary judgment againstFlorida Plaintiff Blandon's unjust enrichment claim becauseshe purchased her van in 2008 from a private individualafter the point in time (April 2004) that Plaintiffsconcede that the bubble market for E-350 vans hadended. 2010 U.S. Dist. LEXIS 68241, [WL] at *50. Beyondthe April 2004 end-point conceded by Plaintiffs, itis undisputed that a number of public reports concerningthe E-350's handling problems were published and/orbroadcast between 2000 and 2004. Such reports wouldnecessarily factor into consideration of the equities forthe unjust enrichment claims of those consumers thatviewed [*107] the reports.Where individual consumers bargained with varyingdegrees of knowledge regarding the alleged defect, wereexposed to varying representations, if at all, about thevan's capacity and relative safety, and filled their vans atvarying capacities with varying handling problems, ifany, Plaintiffs cannot overcome these individual consumerexperiences with the claim that they have commonproof that Ford failed to disclose information about thevehicle's handling. The presiding court would need toconduct separate inquiries into the equities of each classmember's consumer experience to resolve these claims.See, e.g., Vega v. T-Mobile USA, Inc., 564 F.3d 1256,1274 (11th Cir. 2009) (explaining that unjust enrichmentclaims require the reviewing court to "examine the particularcircumstances of an individual case and assureitself that, without a remedy, inequity would result orpersist," and therefore "courts . . . have found unjust enrichmentclaims inappropriate for class action treatment").Common issues of law and fact thus do not pre-
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In re Ford Motor Co. E-350 Can Products Liability Litigation (No. II)

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